cient Civilians, and hath in his learned labours expressed the judgment of a great Statesman, the soundness of a deepe philosopher, and the skill of a cunning Civilian. Learning in him hath showed all her force, and he is admirable because he is absolute." 1 But for many years his name was almost forgotten with that of many another precursor of Grotius. Sir Thomas Holland has restored to his rightful place in the history of international law the work of the Oxford professor who was perhaps the earliest expositor of modern international law.

The three chief works of Gentili contain matter dealing with the three important divisions of international law. The De Legationibus naturally contains much about the relations of states in time of peace. The Advocationis Hispanica duo libri contain one or two important passages upon the law of neutrality.2 His most important work is the De Jure Belli—and it was natural that it should be so. We have seen that it was this topic which had been the most amply treated by the earlier authorities.3 It is this work upon which his historical importance mainly rests.*

The casuistical and theological writers of the sixteenth century could never entirely emancipate themselves from the theological, ethical, and political ideas which they found in the earlier writers. Gentili-an exile for the sake of religion-was wholly emancipated from these ideas. In his eyes, as in the eyes of most Protestants, the tie which bound the nations together was, not allegiance to the pope and a common set of theological dogmas, but the law of nature. This law, he considered, was to be found in that which the "major pars orbis "" agrees upon, and it may be defined as "particula divini juris quam Deus nobis post peccatum reliquam fecit." Upon this basis, and with the help of the technical conceptions of the civil law, he adapted the speculations of his predecessors to modern needs, and explained the actual practice of modern states. He is above all things modern. The law which governs the relations between states is a matter for lawyers, and not for the philosopher, or the theologian. He does not hesitate to condemn private war; and his definition of

"6

9

1 A direction or preparative to the study of the law, 26b.

2 Holland, op. cit. 22; Les Fondateurs du Droit International 74-76.

3 Above 9, 29-33.

For a good summary see Les Fondateurs, etc. 48-74.

5 Bk. i c. I p. 8.

7 Ibid p. I,

6 Ibid P. 6.

"Scilicet nec moralis, nec politici munus Philosophi esse videtur, exponere jura, quæ cum hostibus quæ cum externis communia nobis sunt."

8 Ibid c. 12 p. 55,

"Silete theologi in munere alieno."

9 Ibid c. 3 p. 19, " Privati porro homines, et populi subditi, et Principes inferiores non eam habet necessitatem unquam decurrendi ad judicium Martis: qui jus suum in judicio apud superiorem persequi possunt.'

3

2

war as "publicorum armorum justa contentio "1 is better, according to modern ideas, than that of Grotius. Similarly he condemns certain practices (such as reprisals) which, being generally allowed, were not pronounced to be illegal by Grotius. It is modern events looked at in the light of the law of nature, and with the eyes of a trained civilian, on which he founds the law.* Thus he is the earliest writer of the historic or positive, as opposed to the philosophic school of international lawyers.5 Relying chiefly on facts and rules established by custom or treaties, he guards himself from stating absolute principles, and contents himself with indicating tendencies." Here again he is more modern in his treatment of the subject than Grotius and many of his successors.

But international law was not as yet ripe for such a treatment. It was as yet a very new branch of law, the independent existence of which was as yet hardly recognized. Men's minds, being still influenced by the theological and philosophical moulds in which they had been shaped all through the Middle Ages, still demanded for all branches of knowledge a good stiff backing of a priori principles. Without the influence of such a backing no new branch of knowledge could win a hold over men's minds, nor could it be extended so easily by a process of logical deduction. This need a Protestant Bartolist lawyer was hardly the man to supply. He had neither a systematic nor a philosophic mind. He never thought of co-ordinating his book on embassies with his book on war; and he did not elaborate the basis of principle upon which he constructed his law of war.8 Thus he failed to become the founder of modern international law because his book lacked the inspiration which can only be communicated by work which both satisfies the intellectual taste of the age, and points the way to further progress along the lines prescribed by its intellectual conditions. Grotius succeeded where Gentili failed

7

1 Bk. i c. 2 p. 10.

2 De Jure Belli et Pacis, Bk. i 1. 2, "Ita ut sit Bellum status per vim certantium." 3 Above 38 n. 3.

4"Lui même rapporte de nombreux faits qui se sont passés au cours de XVIe siècle, ce qui a fait dire à Scholpis que le meilleur commentaire des événements historiques de ce siècle c'est l'oeuvre de Gentilis," Les Fondateurs du Droit International 84; Journal Soc. Comp. Leg. xii 59. • Ibid 37.

5 Les Fondateurs du Droit International 37-38.

7" Ses successeurs lui reprocheront aussi, non sans raison, de manquer d'idéalisme," ibid 86.

8" Alors que ses contemporains exposaient, a priori, les règles du droit déduites de la raison naturelle et de la sociabilité des peoples qui constituent une communanté et dependent ainsi les uns des autres, Gentilis au contraire voit dans ce droit le résultat d'un long accord des peuples, accord qui apparait par le long usage et que l'histoire rend manifeste. Il dresse ainsi en quelque sorte un Grand Coutumier du droit international," ibid 85; cf. Nys, Le droit Romain, le droit des Gens, et le college des docteurs en droit Civil 96-97.

because he had the philosophic gifts which Gentili lacked. These gifts guarded him from stating as law rules which went beyond the practices and observances of the nations, and thus enabled him both to put the ascertained law upon a firm footing, and to make suggestions for reforms in such a manner that they won a ready acceptance.1

A history of English law is not the place to enter into a detailed account of Grotius and his work. But since much international law is part of English law, and since Grotius has influenced the whole course of the development of that law, it is necessary to summarize very briefly the causes and nature of his influence.2

The reason why the publication in 1625 of the De Jure Belli et Pacis marks the beginning of modern international law is to be sought firstly in the character of Grotius's intellectual training, and secondly in the character of his mind.

Grotius' intellectual training.-(i) He was a trained lawyer. With him, as with Gentili, the concepts of the civil law supplied the cement which enabled him to bind together under recognized principles the phenomena of international relations. This is apparent if we look at his account of the manner in which sovereignty can be acquired or alienated, or of the manner in which treaties ought to be interpreted.* (ii) He was a master of the scholastic method to which the lawyers of that age were accustomed. This leads him "to make an infinite number of divisions, and to examine successively under different points of view the questions of which he treats.' "5 The characteristics which often make his book tedious to a modern reader helped to increase its authority among the readers of his own time. (iii) He was also a master of the humanist learning which the lawyers of the Renaissance had used to correct the errors of the school of the commentators. He could use the classical historians and the classical philosophers to supply him with instances, and to support his theories. (iv) He was a Protestant. That meant that, like Gentili, he was emancipated from the older political and theological ideas, and was able to look fairly at the political and theological phenomena of his day. And he was a more tolerant Protestant than Gentili.

1 Les Fondateurs du Droit International 89.

2 I have made great use of Professor J. Basdevant's able account of Grotius in Les Fondateurs du Droit International 118-267; also of Mr. Walker's analysis and estimate of his book in his History of the Law of Nations i 278-337. Grotius's book was translated into English in 1654, Nys, Le droit Romain, le droit des Gens, etc. 89-90.

8 De Jure Belli et Pacis, Bk. i c. 6.

Les Fondateurs du Droit International 218.

7 Walker, op. cit. 331.

4 Ibid 16.

• Ibid 220.

8 Gentili (op. cit. Bk. iii c. 19 pp. 384-387), though he approves of commercial treaties, or treaties by which the infidel is subjected to the Christian, and a few others, disapproves of all offensive alliances with the infidel either against infidels or a fortiori

He was prepared to extend the boundaries of international law beyond the circle of Christian states. Christian states indeed were more closely bound together by ties of kinship; but none the less the infidels had rights, and no human law forbade the formation of an alliance with them.1

The character of his mind.-Grotius had both a sympathetic and a constructive mind. He was capable of appreciating the strong points in the views of his predecessors; and his appreciation kept him within the circle of ideas which could be understood by his contemporaries. Most of his theories could be illustrated from older books; but he was able so to combine what he had borrowed that he gave to his borrowings a wholly new meaning.2 Thus he based his theory of the law which governed the relations of states upon so skilful a combination of natural law, divine law, and established custom, that it won a universal acceptance. Sir F. Pollock has said, "Scholars and philosophers would for the most part accept the law of nature; divines, and especially Protestants (many of whom regarded natural law with suspicion), expected Scriptural warrant; public men would insist on being assured that the author who called for their attention was walking on the ground of practical affairs, and not merely setting up his own opinions as an universal standard." It was only a learned man with this kind of sympathetic and constructive mind who could succeed in establishing international law on a basis which "learned men would deem sound and men of the world would not think fantastic." 4

A book written on these lines is the kind of book which makes history. It was sufficiently conservative to shock no established prejudices; and, at the same time, it was sufficiently modern to express a set of ideas which had long been present to

against Christians, relying on Old Testament Biblical history-“Ita_maneo cum doctissimo nostri seculi theologo: qui negat cum infidelibus arma recte conjungi umquam" (p. 385); cf. Journal Soc. Comp. Leg. xii 68, 69; Nys, Le droit Romain, le droit du Gens, etc. 96.

1 Grotius, De Jure Belli et Pacis, Bk. ii 15. 8, "De foederibus frequens est questio, licite-ne ineantur cum his qui a vera religione alieni sunt; quæ res in jure naturæ dubitationem non habet. Nam id jus ita omnibus hominibus commune est, ut religionis discrimen non admittat. Sed de jure divino quæritur ex quo hanc quæstionem tractant, non theologi tantum, sed et juris consultorum non-nulli."

2 Les Fondateurs du Droit International 264-265, "Son mérite propre est d'avoir fait le synthèse des éléments fournis par ses précurseurs. On a pu dire que le De Jure est comme la dernière forme des travaux antérieurs. Ceux ci peuvent disparaître : le traité de Grotius sauvé, ou n'aura presque rien perdu. Que si l'on prétend qu'il restérait bien peu à Grotius si ses prédécesseurs s'avisaient de lui réclamer ce qu'il leur doit, cela nous touche peu. Grotius s'est vraiement approprié ce qu'il a tiré de ses prédécesseurs. Son oeuvre a donné a des solutions déjà présentées antérieurement une forme nouvelle en les renfermant dans un système: en les condensant, notre auteur a pu être considéré comme l'expresssion unique de la doctrine de son temps.' 4 Ibid 710.

3 Camb. Mod. Hist. xii 709, 710.

5

the minds of statesmen, but as yet lacked authoritative statement in scientific form. Grotius's work is conservative. It is primarily concerned with the laws of war, upon which there was a comparatively abundant literature.1 What he has to say about the relations of states in time of peace is inserted in the interstices of his treatment of the laws of war. Therefore it is found where the men of his time would expect to find it. He deals with subjects already well nigh obsolete, such as private war; 2 and he maintains the old view, which was quite inapplicable to the international relations of his day, that ordinary resident ambassadors could be refused admission because they were unnecessary. Like his predecessors, he turns aside to discuss questions of constitutional law and political science which are remote from his proper subject. His natural law, like the natural law of the mediaval writers, is borrowed from and primarily applicable to the relations, not of states, but of individuals. But in spite of all this his work is at once modern and prophetic. It proves, in the only form which would carry conviction to the age in which it was written, the fact that there is a law which governs the relations of states. It states in approved philosophical form what is the basis of that law, and in practical form what are its contents. The very comparison between the philosophical basis and the practical rule helped to shame rulers into recognizing the need for improvement. Grotius's manner of stating the strict law of war, and the "temperaments" which he advocated, is typical of the mind of the man and of the method of his work. An accurate exposition of the established rules, coupled with practical advice for their improvement, was likely to effect far more than any number of imaginative sketches of an ideal law, and any amount of heated denunciation of the existing law.

8

We can compare Grotius with men like Accursius or Bartolus in the history of mediæval Roman law, and with men like Coke in the history of the common law. They all summed up in

9

1 Les Fondateurs du Droit International 225-226.

2 De Jure Belli et Pacis, Bk. i 1. 2.

3 Ibid Bk. ii 18. 3, "Optimo autem jure rejici possunt quæ nunc in usu legationes assiduæ, quibus quam non sit opus docet mos antiquus cui illæ ignoratæ "; similarly Coke, Fourth Instit. 155, tells us that Henry VII. "would not in all his time suffer Lieger Ambassadors of any forain king or prince within his realm, nor he any with them, but upon occasion used ambassadors "; above 39, 40.

4 Les Fondateurs du Droit International 186-187.

5 Ibid 187-189.

6 Ibid 246-247, "Les règles qui s'imposent aux nations en l'absence de leur consentement sont toutes celles et seulement celles qui s'imposent à l'homme dans ses rapports avec ses semblables. La science moderne l'a bien compris, puisque chaque auteur fonde sa doctrine juridique internationale sur certains droits fondamentaux des Etats: or, nous ne trouvons pas chez Grotius de théorie des droits fondamentaux des Etats."

7 De Jure Belli et Pacis, Bk. iii 1-16. 8 Vol. iv 221, 222.

Below 489-493.